Hendricks v. Commissioner of Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

KAYLA HENDRICKS, on behalf of )

D.C.H., a minor child, )

)

Plaintiff, )

)

v. ) Case No. CIV-22-611-STE

)

KILOLO KIJAKAZI, Acting Commissioner )

of the Social Security Administration, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of

the final decision of the Commissioner of the Social Security Administration denying

Plaintiff’s application for benefits under the Social Security Act. The Commissioner has

answered and filed a transcript of the administrative record (hereinafter TR. ____). The

parties have consented to jurisdiction over this matter by a United States magistrate

judge pursuant to 28 U.S.C. § 636(c).

The parties have briefed their positions, and the matter is now at issue. Based on

the Court’s review of the record and the issues presented, the Court AFFIRMS the

Commissioner’s decision.

I. PROCEDURAL BACKGROUND

This case involves an application for Supplemental Security income filed by Ms.

Hendricks, on behalf of her minor son, D.C.H., alleging a disability based on D.C.H.’s

critical coarctation of the aorta, a congenital heart defect (“CHD”), which was diagnosed

shortly after he was born on September 6, 2008. (TR. 193-198). Plaintiff initially filed

for benefits for D.C.H. on July 20, 2015. TR. 11. An administrative hearing was held

and on September 26, 2017, the Administrative Law Judge (ALJ) issued an unfavorable

decision. (TR. 11-24). The Appeals Council denied Plaintiff’s request for review and Ms.

Hendricks filed an appeal in federal court. (TR. 1-4, 520-522). On October 26, 2022, the

Northern District of Oklahoma reversed and remanded the Commissioner’s decision.

(TR. 525-533).1

On remand, a second administrative hearing was held and the Commissioner

issued a second unfavorable decision. (TR. 441-497). Subsequently, the Appeals Council

denied Plaintiff’s request for review,2 making the ALJ’s decision the final decision of the

Commissioner.

II. DETERMINATION OF DISABILITY FOR CHILDREN

The Social Security Act provides that “[a]n individual under the age of 18 shall be

considered disabled . . . if that individual has a medically determinable physical or

mental impairment, which results in marked and severe functional limitations, and

which can be expected to result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(I).

1 Following the remand order from the Northern District, the Appeals Council remanded the

case for a second administrative hearing. TR. 536. In doing so, the Appeals Council noted

that Plaintiff had filed a subsequent claim for disability benefits on January 22, 2020 and

ordered the ALJ on remand to consolidate the two claims. .

2 (TR. 428-430).

2

The Commissioner applies a three-step sequential inquiry to determine whether

an individual under the age of 18 is disabled. 20 C.F.R. § 416.924(a). At step one,

the ALJ determines whether the child is engaged in substantial gainful activity. at §

416.924(b). If not, the inquiry continues to step two for consideration of whether the

child has a severe medically determinable impairment(s). at § 416.924(c). If so, step

three involves determining whether such impairment meets, medically equals, or

functionally equals a listed impairment. at § 416.924(d). A child’s impairment

functionally equals an impairment if it is “of listing-level severity; , it must result in

‘marked’ limitations in two domains of functioning or an ‘extreme’ limitation in one

domain[.]” at § 416.926a(a), (d). A child will be found “not disabled” if the

impairment does not: (1) meet the twelve-month duration requirement or (2) meet,

medically equal, or functionally equal a listed impairment. at § 416.924(d)(2).

III. THE RELEVANT LISTINGS

The relevant listing associated with D.C.H.’s CHD and asthma, are found at

Listings 104.06 and 103.03 for Congenital Heart Disease and Asthma, respectively.

Listing 104.06 provides:

Congenital heart disease, documented by appropriate medically

acceptable imaging (see 104.00A3d) or cardiac catheterization, with one

of the following:

A. Cyanotic heart disease, with persistent, chronic hypoxemia

as manifested by:

1. Hematocrit of 55 percent or greater on two

evaluations 3 months or more apart within a

consecutive 12-month period (see 104.00A3e); or

3

2. Arterial O2 saturation of less than 90 percent in room

air, or resting arterial PO2 of 60 Torr or less; or

3. Hypercyanotic spells, syncope, characteristic

squatting, or other incapacitating symptoms directly

related to documented cyanotic heart disease; or

4. Exercise intolerance with increased hypoxemia on

exertion.

OR

B. Secondary pulmonary vascular obstructive disease with

pulmonary arterial systolic pressure elevated to at least 70

percent of the systemic arterial systolic pressure.

OR

C. Symptomatic acyanotic heart disease, with ventricular

dysfunction interfering very seriously with the ability to

independently initiate, sustain, or complete activities.

Listing 104.06.3

Listing 103.03 provides:

Asthma. With:

A. FEV1 equal to or less than the value specified in table I of

103.02A; Or

B. Attacks (as defined in 3.00C), in spite of prescribed

treatment and requiring physician intervention, occurring at

least once every 2 months or at least six times a year. Each

inpatient hospitalization for longer than 24 hours for control

of asthma counts as two attacks, and an evaluation period of

at least 12 consecutive months must be used to determine

the frequency of attacks; Or

3 Listing 104.06 also has a subsection D, but that subsection is irrelevant as it only applies to

claimants under 1 year of age.

4

C. Persistent low-grade wheezing between acute attacks or

absence of extended symptom-free periods requiring

daytime and nocturnal use of sympathomimetic

bronchodilators with one of the following:

1. Persistent prolonged expiration with radiographic or

other appropriate imaging techniques evidence of

pulmonary hyperinflation or parabronchial disease; or

2. Short courses of corticosteroids that average more

than 5 days per month for at least 3 months during a

12-month period; Or D. Growth impairment as

described under the criteria in 100.00.

Listing 103.03.

IV. THE ADMINISTRATIVE DECISION

The ALJ followed the three-step sequential evaluation process established for

minor children as set forth in 20 C.F.R. §416.924(a). At step one, the ALJ found that

D.C.H. had never engaged in substantial gainful activity. (TR. 442). At step two, the ALJ

concluded that D.C.H. suffered from the following severe impairments: status post

coarctation of the aorta; status post end to end anastomosis repair; asthma/allergic

rhinitis; attention deficit hyperactivity disorder; a learning disorder; and a reading

disorder. (TR. 442). At step three, the ALJ considered Listings 104.060 (congenital heart

disease) and 103.03 (asthma) concluded that D.C.H. did not have an impairment that

met or medically equaled either of these listed impairments. (TR. 443). At step three

the ALJ also evaluated the six domains to determine whether D.C.H.’s impairments

functionally equaled a listed impairment. (TR. 444-452).

5

In doing so, the ALJ concluded that D.H. had a “less than a marked” limitation in the

domains of: (1) acquiring and using information; (2) attending and completing tasks;

(3) moving about and manipulating objects; and (4) health and physical well-being.

(TR. 445). The ALJ also concluded that D.C.H. had no limitation in the domains of: (1)

interacting and relating with others; and (2) the ability to care for himself. (TR. 445).

Accordingly, the ALJ concluded that D.C.H’s impairments did not functionally equal a

listed impairment. (TR. 452). Ultimately, the ALJ concluded that D.C.H. was not

disabled, because his impairments did not meet, equal, or functionally equal a listed

impairment. (TR. 452).

V. STANDARD OF REVIEW

This Court reviews the Commissioner’s final decision “to determin[e] whether the

factual findings are supported by substantial evidence in the record and whether the

correct legal standards were applied.” , 602 F.3d 1136, 1140 (10th Cir.

2010). Under the “substantial evidence” standard, a court looks to an existing

administrative record and asks whether it contains “sufficien[t] evidence” to support the

agency’s factual determinations. , 139 S. Ct. 1148, 1154 (2019).

“Substantial evidence … is more than a mere scintilla … and means only—such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

, 139 S. Ct. at 1154 (internal citations and quotation marks omitted).

While the court considers whether the ALJ followed the applicable rules of law in

weighing particular types of evidence in disability cases, the court will “neither reweigh

6

the evidence nor substitute [its] judgment for that of the agency.” , 805

F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

VI. ISSUES PRESENTED

Plaintiff alleges that the ALJ erred in considering: (1) certain evidence which she

deems relevant to the ALJ’s step three findings; (2) the opinion of medical expert, Dr.

Gutierrez-Santiago; and (3) the consistency of Plaintiff’s subjective statements. (ECF

No. 18:4-15).

VII. THE ALJ’S CONSIDERATION OF EVIDENCE RELATED TO THE LISTINGS

As stated, at step three, the ALJ considered Listings 104.060 (for congenital

heart disease) and 103.03 (for asthma) and concluded that D.C.H. did not have an

impairment that met, medically equaled, or functionally equaled either of these Listings.

(TR. 443-452). In doing so, Plaintiff argues that the ALJ failed to consider certain

evidence relevant to finding that D.C.H.: (1) met or equaled a listed impairment and/or

(2) functionally equaled a listed impairment. (ECF No. 18:6-11, 15). The former is

based on medical factors alone and specific criteria outlined in each Listing. 20

C.F.R. § 416.924(d). The latter is based on evaluating the severity of a child’s

functioning in six domains. at § 416.926a(a), (d). The Court considers each

argument in turn and rejects both of Plaintiff’s challenges.

Regarding Plaintiff’s challenge to the ALJ’s conclusion that D.C.H. did not meet or

equal a Listed impairment, Plaintiff states:

Dr. Guitterrez-Santiago [sic], relying on a one-time finding when

Claimant’s pressure gradient was assessed at his lowest of 14 mmHg,

7

assessed Claimant’s coarctation as “a past history of CHD” and “status

post repair.” Such testimony demonstrates no knowledge of the long-term

sequelae of coarctation of the aorta. This includes the fact that the shape

of Claimant’s aorta alone can cause chest pain and shortness of breath. In

this case, analysis was provided to the objective evidence in the record

regarding Claimant’s complex CHD, including his large pressure gradient

causing pressure disparity between his legs and head, tortuous aorta,

pulmonary stenosis causing restricted blood flow to his lungs, and

ventricular hypertrophy. The pressure disparity can be seen, as mentioned

in Claimant’s four blood pressure values. Such hemodynamics are

known to cause fatigue, shortness of breath, cough, and chest pain

caused by hypertension leading to recurrence, stroke, aneurysm, and

other cardiac events in this CHD. Nonetheless, here, both Dr. Guitterrez-

Santiago [sic] and the reviewing physicians failed to look at any relevant

medical evidence in the record when analyzing Claimant’s CHD.

. . .

The reviewing physicians only provided one relevant measurement when

analyzing Claimant’s CHD, stating his pressure gradient had improved

from 25 to 14 mmHg. This ignores that Claimant’s pressure gradient was

25 mmHg in the first place. Second, the reviewing physicians state

Claimant takes no cardiac medications in support of their findings.

However, aortic coarctation is treated with stenting and angioplasty and

this finding is irrelevant to the condition. The agency’s cardiovascular

listing itself notes conclusions about the severity of a cardiovascular

impairment cannot be made on the basis of type of treatment rendered or

anticipated given that the amount of function restored varies with the

nature and extent of the disorder. Listing 104.00G2. According to the

agency’s own listings, Claimant suffers from a symptomatic acyonotic

(defined as a heart defect where the heart contains enough oxygen, yet

the blood is being pumped abnormally), however, neither the reviewers

nor Dr. Guitterrez-Santiago [sic] analyze or examine how Claimant’s blood

is being pumped or how it has affected him during the time at issue.

Listing 104.06C. Both opinions are simply unsupported, given

that no objective evidence exists that Claimant suffers from asthma.

Listing 140.00B3a the agency bases its evaluation on the current

objective medical evidence. Here, only objective evidence supporting

Claimant’s severe cardiac impairment.

. . .

8

Here, no agency medical expert analyzed Claimant’s limitations as a

symptomatic acyonotic defect with measurements showing severe

pulmonary stenosis, high blood pressure causing ventricular hypertrophy,

and peak gradient measurements ranging as high as 44 to 64 mmHg

during the time at issue. No expert considered this objective evidence as

causing Claimant’s symptoms despite the agency’s own listings specifically

listing coarctation of the artery as an acyonotic defect that causes

limitations and ventricular dysfunction due to impaired blood flow,

Throughout the entire time at issue, Claimant has never had normal

measurements, with his best mean gradient indicating he had only

demonstrated improvement to his hemodynamics and pressure

while still suffering from shortness of breath and indicating future surgery.

Likewise, Claimant was generally found restricted by his fatigue.

(ECF No. 18:6-9) (internal citations omitted).

Apparently, Plaintiff believes that the State Agency physicians and Dr. Gutierrez-

Santiago erred in failing to consider certain evidence which Plaintiff deemed relevant to

determining whether D.C.H. met or equaled a Listed impairment, and that the ALJ

erred, in turn, because he had adopted the opinions of the State Agency physicians and

Dr. Gutierrez-Santigo. To the extent the Court understands Plaintiff’s argument, the

Court rejects it, because Plaintiff never explains how D.C.H.’s pressure gradient, blood

flow, long-term sequelae of coarctation, pressure disparity, or lack of medication, would

have resulted in a finding that Claimant had met or equaled a Listing. ,

Listings; 739 F.3d 569, 576 (declining to consider arguments that were

not adequately developed); 43 F.3d 1388, 1389 n. 2 (10th

Cir. 1994) (noting that “perfunctory complaints” failing “to frame and develop an issue”

are not “sufficient to invoke appellate review”); 695 F.3d at 1161

(declining to consider issues not adequately briefed for review). Plaintiff argues that

9

“[s]uch hemodynamics are known to cause fatigue, shortness of breath, cough, and

chest pain caused by hypertension leading to recurrence, stroke, aneurysm, and other

cardiac events in this CHD,” but Plaintiff never states that such was the case with

D.C.H. or that these symptoms would somehow result in a finding that he met or

equaled a Listing.

Regarding Plaintiff’s challenge to the ALJ’s conclusion that D.C.H. did not

functionally equal a Listed impairment, Plaintiff takes issue with the ALJ’s evaluation of

the six domains, wherein she found that D.H. had:

• A “less than a marked” limitation in the domains of acquiring and using

information; attending and completing tasks; moving about and

manipulating objects; and health and physical well-being; and

• No limitation in the domains of interacting and relating with others; and

the ability to care for himself.

(TR. 445). Plaintiff challenges the ALJ’s findings with regard to three domains—the

ability to move and manipulate objects, the ability to care for himself, and the ability to

acquire and use information. (ECF No. 18:8, 10).

With regard to the domain involving Plaintiff’s ability to move and manipulate

objects, Plaintiff states:

Here, the ALJ accepted an opinion that Claimant suffered from “less than

marked” limitations in the ability to move and manipulate objects, despite

acknowledging testimony Claimant became short of breath with minimal

exercise and could not tie his shoes. This domain evaluates difficulties

with moving at an efficient pace around the neighborhood and difficulties

with fine motor movements. 09-1p.

10

(ECF No. 18:8). Plaintiff apparently believes that D.C.H.’s shortness of breath and

difficulty tying his shoes should have resulted in a finding that he has greater limitations

in this domain. But this argument is nothing more than an attempt to re-weigh the

evidence, which this Court cannot do. , , 805 F.3d at 1201

(noting that the Court may “neither reweigh the evidence nor substitute [its] judgment

for that of the agency.”) (internal quotation marks omitted).4

With regard to the domain involving Plaintiff’s ability to care for himself, Plaintiff

states:

Likewise, [the ALJ] adopted an opinion Claimant had no limitations in the

ability to care for himself because he had a “history” of surgery and

suffered from “no symptoms” of shortness of breath and treated this with

“treatment with allergy medication.” This opinion ignored not only

known long-term sequelae of this complex CHD but failed to evaluate

signs and symptoms in the record, measurements from the record, and

objective medical findings from it, .

(ECF No. 18:8-9).5

While Plaintiff’s argument is difficult to discern, she appears to be criticizing the

ALJ’s rationale for her findings in this domain, and believes the ALJ failed to consider

certain evidence in her evaluation of the same. But for two reasons, the Court rejects

4 Plaintiff also argues that in this domain “no analysis regarding [D.C.H.’s] CHD or its effect on

his motor skills exists.” (ECF No. 18:15). But Plaintiff does not explain how D.C.H.’s CHD would

have affected this domain and the Court will not entertain Plaintiff’s undeveloped argument.

.

5 Plaintiff also argues that the ALJ erred in adopting Dr. Guitierrez-Santiago’s opinion regarding

this domain because the physician “did not analyze Claimant’s significant aneurysm dangers in

conjunction with his impulsivity and ADHD symptoms.” (ECF No. 18:15). But the “risk” of having

an aneurysm is purely speculative and the Court finds no error based on Gutierrez-Santiago’s

failure to testify regarding the same.

11

Plaintiff’s argument. First, the ALJ did not rely on Plaintiff’s history of surgery and

allergy medication as rationales for her findings in this domain. Instead, the ALJ

adopted the findings of Dr. Gutierrez in this regard and stated: “In caring for himself,

[Dr. Gutierrez] found the claimant had no limitations based on his age. She noted he

reported no difficulties sleeping and he eats a good diet.” (TR. 444) (citation omitted).

And second, to the extent Plaintiff believes the ALJ had ignored “long-term sequelae of

this complex CHD” and “signs and symptoms in the record, measurements from the

record, and objective medical findings from it,” Plaintiff never explains how such

findings are either relevant to this domain or would result in a different conclusion, nor

does she detail specific evidence which she believes would support her position. The

Court rejects Plaintiff’s argument.

Finally, with regard to the domain involving D.C.H.’s ability to acquire and use

information, Plaintiff argues that the ALJ erred in failing to consider evidence relating to

D.C.H.’s: (1) IQ of 78, (2) difficulty in understanding instructions, and (3) service plan

which was put in place in his school in December 2020. (ECF No. 18:10). Relatedly,

Plaintiff also argues that Dr. Gutierrez-Santiago failed to consider Plaintiff’s ability to

learn, read, write, and do simple math prior to issuing her opinion that Plaintiff had a

“less than a marked limitation” in this domain. (ECF No. 18:10). For two reasons, the

Court rejects Plaintiff’s arguments.

First, the ALJ did consider Plaintiff’s IQ, difficulty in understanding instructions,

and school service plan. TR. 448 (ALJ noting that “[i]n addition, associated with his

12

application for disability, the claimant underwent a consultative psychological evaluation

on October 22, 2015. Wechsler Intelligence Scale for Children—Fourth Edition (WISC-

IV) testing revealed a full scale IQ of 78, placing the claimant in the borderline range of

intellectual functioning. . . . On Letter-Number sequencing testing the claimant had

difficulty understanding the instructions to the task.”); TR. 447 (ALJ noting “[i] addition,

more recently, some education records were submitted reflecting the claimant has a

Student 504 education plan. Therein, his noted areas of need are learning, reading,

concentrating and thinking. Records indicate the claimant would receive some

reasonable accommodations to be successful in the general education curriculum

including small group testing; separate location; text to speech built into online testing;

simplifications/repetitions/signage of directions; and frequent breaks. In addition, the

plan noted the claimant should be asked to repeat and explain instructions; allow extra

time for oral/written response; provide frequent feedback; explain directions in detail as

needed; and give assignments which must be copied from the chalkboard or from other

sources of written material.”).

Second, Plaintiff alleges that Dr. Gutierrez-Santiago failed to consider Plaintiff’s

“ability to learn, read, write, and do simple math” opinion prior to issuing her opinion,

which the ALJ ultimately adopted. The Court views this challenge as an allegation that

the ALJ’s finding in this domain lacked substantial evidence because the ALJ adopted

the opinion of Dr. Gutierrez-Santiago regarding this domain, and she, in turn had not

based her opinion on the entire record. The Court rejects this argument however, as Dr.

13

Gutierrez-Santiago testified that in her review of the evidence, she had considered

D.C.H.’s school service plan, which outlined his abilities and limitations in the

aforementioned areas. TR. 469, 689-691.

In sum, the Court rejects Plaintiff’s challenges to the ALJ’s consideration of

certain evidence in evaluating whether D.C.H. met, equaled, or functionally equaled a

listed impairment.

VIII. THE ALJ’S EVALUATION OF THE MEDICAL EXPERT’S OPINION

Plaintiff challenges the ALJ’s evaluation of opinions offered by medical expert, Dr.

Gutierrez-Santiago. (ECF No. 18:6-8).

At the administrative hearing, following a review of D.C.H.’s case file, medical

expert Dr. Guiterrez-Santiago testified regarding her opinion of D.C.H.’s health. (TR.

470-476). Dr. Gutierrez-Santiago first testified that Plaintiff suffered from congenital

heart disease and asthma, but that neither of those conditions met or equaled a listed

impairment. (TR. 470-471). Dr. Gutierrez-Santiago next examined the six domains and

determined that D.C.H.’s impairments did not functionally equal a listed impairment.

(TR. 471-473). Ultimately, the ALJ accorded “significant weight” to Dr. Guiterrez-

Santiago’s opinions, finding that they were consistent with the totality of evidence and

supported by specific objective evidence. (TR. 451). In a disjointed fashion, Plaintiff

alleges legal error in the ALJ’s consideration of Dr. Gutierrez-Santiago’s opinion. (ECF

No. 18:5-11). The Court rejects Plaintiff’s argument.

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A. Governing Legal Standards for Evaluation of Dr. Gutierrez-

Santiago’s Opinion

Regardless of its source, the ALJ has a duty to evaluate every medical opinion in

the record. , 365 F.3d 1208, 1215 (10th Cir. 2004); 20 C.F.R. §

416.927. The weight given each opinion will vary according to the relationship between

the claimant and medical professional. , 365 F.3d at 1215. For example, in

evaluating a treating physician’s opinion, the ALJ must follow a two-pronged analysis.

First, the ALJ must determine, then explain, whether the opinion is entitled to

controlling weight. , 373 F.3d 1116, 1119 (10th Cir. 2004). This

analysis, in turn, consists of two phases. First, an ALJ must consider whether the opinion

is “well-supported by medically acceptable clinical and laboratory diagnostic techniques”

and consistent with other substantial evidence in the record. Policy Interpretation Ruling

Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions, 1996

WL 374188, at 2 (July 2, 1996) (SSR 96-2p) (internal quotations omitted).

If controlling weight is declined, or there is no treating physician’s opinion given

controlling weight, the ALJ must assess the opinion under a series of factors which are

considered when assessing medical opinion, regardless of its source. These factors

include: (1) the length of the treatment relationship and the frequency of examination;

(2) the nature and extent of the treatment relationship, including the treatment

provided and the kind of examination or testing performed; (3) the degree to which the

physician’s opinion is supported by relevant evidence; (4) consistency between the

opinion and the record as a whole; (5) whether or not the physician is a specialist in the

15

area upon which an opinion is rendered; and (6) other factors brought to the ALJ’s

attention which tend to support or contradict the opinion. 638 F.3d

1324, 1330 (10th Cir. 2011); 20 C.F.R § 404.927.6

B. No Error in the ALJ’s Evaluation of Dr. Gutierrez-Santiago’s

Opinion

Ms. Hendricks alleges the ALJ committed legal error in evaluating Dr. Gutierrez-

Santiago’s opinion. (ECF No. 18:5-11). In doing so, Plaintiff states:

Dr. Guitterrez-Santiago [sic] has no treating relationship with Claimant.

Aside from this, she is not a pediatric cardiologist, or even a practicing

pediatrician. When asked to testify regarding Claimant’s complex CHD, she

was unable to name it or even its related repair. She further was unable

to list the number of surgeries Claimant endured. When providing

testimony, she was unable to name a single measurement relevant to

Claimant’s condition, including Claimant’s current pressure gradient, noted

by his mother as still high at 17 mmHg. Given her irrelevant testimony

and credentials, and even her lack of current pediatric practice, the ALJ

failed to give a single reason as to why she relied on her testimony and

findings.

(ECF No. 18:5-6).

6 As stated, two applications for disability benefits are at issue—Plaintiff’s original application

which was filed in 2015 and the subsequent application filed in 2020. . Ordinarily, for

applications filed before March 27, 2017, the ALJ’s review of medical opinions would be

governed by 20 C.F.R. § 416.927. 20 C.F.R. § 416.924a(1) (2015). For claims filed after

March 27, 2017, the controlling law for evaluation of medical opinions in child disability cases is

20 C.F.R. § 416.920c. 20 C.F.R. §416.924a (2022). Under the revised regulations, the

Commissioner is no longer required to “defer or give any specific evidentiary weight, including

controlling weight, to any medical opinion(s)[.]” 20 C.F.R. § 416.920c(a). Instead, the ALJ need

only articulate how persuasive he finds the medical opinion. 20 C.F.R. § 416.920c(b). Here,

however, the ALJ considered Plaintiff’s 2015 and 2020 applications concurrently, under the old

regulations, TR. 442, presumably because the Appeals Council had deemed Plaintiff’s

second application a “duplicate.” TR. 442, 536. The parties do not dispute the applicability

of the “old” regulations as controlling. ECF Nos. 18 & 24.

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Generally, the opinions of non-examining doctors are given less weight than

those of examining doctors, but that does not mean opinions of medical advisors are

entitled to no weight. 814 F.2d 1456, 1463 (10th Cir. 1987)

(reports of reviewing doctors given less weight than those of examining doctors).

Moreover, the regulations expressly allow the ALJ to ask for and consider opinions from

medical experts on the nature and severity of the claimant’s impairments and whether

the impairments equal the requirements of a listed impairment. 20 C.F.R.

416.927(e)(2)(iii). In considering such an opinion, the ALJ is bound by the

aforementioned rules to evaluate medical opinions. ; 20 C.F.R. §

416.927(e)(2)(3). Generally speaking, the more consistent the expert’s opinion is with

the record as a whole, the more weight the ALJ must give to that opinion. 20 C.F.R.

416.927(c)(3). Here, Plaintiff does not allege that the ALJ failed to consider any of the

relevant factors, , only that Dr. Gutierrez-Santiago was somehow not qualified

to render an opinion because she had no treating relationship with D.C.H. and was not

his pediatrician. But the fact that Dr. Gutierrez-Santiago was not Plaintiff’s physician or

even a pediatrician is irrelevant to her ability to testify as a non-examining medical

source.

Plaintiff also alleges that the ALJ “failed to give a single reason as to why she

relied on [Dr. Gutierrez-Santiago’s] testimony and findings,” but that assertion is simply

wrong. In evaluating Dr. Gutierrez-Santiago’s opinions, the ALJ stated:

Further, Jessica Guiterrez-Santiago, M.D., appeared at the hearing

and testified that, after reviewing available evidence, the claimant did not

17

meet or equal any of the applicable medical listings. In addition, with

regard to functional limitations, she opined the claimant has less than

marked limitations in acquiring and using information. In support of same,

she noted the claimant had psychological testing which revealed a full

scale IQ score of 78/borderline intellectual functioning; only slight

problems in this domain indicated in a teacher’s questionnaire; a 2018

well child checkup indicating his school performance was below average;

a 2020 well child checkup indicating no grade retention; and he has a 504

plan at school with no further psychological testing noted in the record.

(Exhibits 5F/3, 5E, 13F/50, 14F/7, 27E). As for attending and completing

tasks, she also found a less than marked limitation. In support of same,

she cited a 2015 teacher questionnaire indicating slight problems;

attention described as often a problem in Vanderbilt assessment by

teacher; no medications at last well child checkup; and a 504 plan with

accommodations, including extra time, frequent feedback and explaining

directions in detail. (Exhibit 5E/10, 24E, 14F, 27E).

In the third domain, interacting and relating to others, she found

the claimant had no limitations. In support of same, she noted the teacher

questionnaire from 2015 noted only slight problems; the Vanderbilt

assessment from a teacher noted behavioral issues were generally never

or occasionally a problem; and there is no behavioral intervention plan or

significant behavioral notes on the chart. (Exhibits 5E, 24E). As for moving

about and manipulating objects, she also found the claimant to have less

than marked limitations. In noting same, she stated the claimant had a

history of shortness of breath with exercise and takes albuterol 30

minutes before exercise. (Exhibit 13F/36). In caring for himself, she found

the claimant had no limitations based on his age. She noted he reported

no difficulties sleeping and he eats a good diet. (Exhibit 14F). In the last

domain, health and physical well being, she opined the claimant had less

than marked limitations. In support of same, she stated the claimant has

a history of congenital heat [sic] disease, status post surgery and stent

placement (October 2016); however, he has been primarily stable since

with no medication, hospitalizations or emergency room visits. Since

January 2018, he has not had significant symptoms of chest pain,

dizziness, syncope, palpitations, shortness of breath, and/or cyanosis. In

March 2019, he was stable with no activity restrictions. He had an

echocardiogram at that time that revealed normal intracardiac anatomy

and normal ventricular function. He also has a mild history asthma, but

conservative treatment with allergy medicine albuterol. He has an

overweight BMI. (Exhibit 10F) In conclusion, she noted the claimant has

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two chronic medical conditions and they cause limitations; however, they

are generally stable and do not cause marked or extreme limitations.

(TR. 443-444). After determining that D.C.H. had not engaged in substantial gainful

activity, the remaining inquiries involved whether D.C.H. suffered from a severe

impairment and whether his severe impairment(s) met, equaled, functionally equaled a

listed impairment. . Dr. Gutierrez-Santiago testified regarding the same,

providing evidentiary support for her testimony, as cited by the ALJ. TR. 443-444,

470-476. Thus, the Court rejects Plaintiff’s contention that the ALJ “failed to give a

single reason as to why she relied on [Dr. Gutierrez-Santiago’s] testimony and findings”

and that Dr. Gutierrez-Santiago’s testimony was “irrelevant.” Dr. Gutierrez-Santiago’s

testimony was extraordinarily relevant to determining whether D.C.H. suffered from a

disability, the physician provided rationales in support of her findings, and the ALJ in

turn, relied on the same.

Plaintiff argues that Dr. Gutierrez-Santiago “was unable to name” Plaintiff’s heart

condition, its related repair, or “a single measurement relevant to Claimant’s condition,

including Claimant’s current pressure gradient, noted by his mother as still high at 17

mmHg.” (ECF No. 18:5-6). But at the administrative hearing, Plaintiff’s counsel made no

such inquiry, instead, only asking Dr. Gutierrez-Santiago about D.C.H.’s heart murmur,

for which she demonstrated significant knowledge in explaining that he currently

exhibited no symptoms stemming from the murmur. (TR. 473-474). In the future, Dr.

Gutierrez-Santiago explained, D.C.H. could develop symptoms, not owing to the

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murmur, but because of a “re-stricture” of the area where D.C.H. had a stint implanted

to keep open one of his main heart vessels. (TR. 473-474).

Plaintiff also argues that the ALJ erroneously relied on Dr. Gutierrez-Santiago’s

characterization of D.C.H.’s CHD as “stable,” presumably arguing otherwise by citing

“three heart surgeries, including a recent angioplasty that only minimally improved his

mean gradient to 17 mmHg by March 2019.” (ECF No. 18:6). The records that Plaintiff

cites in support are found at 391 and 698. Page 391 reflects a visit in 2016 which

indicates that D.C.H.’s CHD was “status post-repair” which will “likely need balloon and

stent placement in the future and to follow closely. If pressure gradient remains high he

would recommend a repeat catheterization with stent of the descending aorta yet the

narrowing has stayed stable.” (TR. 391). This record did not indicate that Plaintiff’s CHD

was not “stable.” Page 698 reflects a follow-up study for D.C.H.’s CHD, showing:

1. There is a history of a coarctation of the aorta status post surgical

repair and stent placement. A mild residual coarctation of the aorta

is present.

2. Trivial tricuspid and pulmonary insufficiency, not clinically

significant.

3. Normal biventricular size and function.

(TR. 698). Plaintiff argues that “additional surgery is required once this measurement

reaches 20 mmHg.” (ECF No. 18:6). But Plaintiff has offered no evidence that D.C.H.

has needed an additional surgery, and the Court cannot find anything in this record that

would indicate that D.C.H.’s CHD was not “stable.”

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Based on the forgoing, the Court rejects Plaintiff’s argument that the ALJ had

committed legal error in her evaluation of the opinion from Dr. Gutierrez-Santiago.

IX. THE ALJ’S EVALUATION OF PLAINTIFF’S SUBJECTIVE ALLEGATIONS

Finally, Plaintiff contends that the ALJ erred in considering the consistency of her

subjective allegations. (ECF No. 16:10-14). The Court disagrees.

A. ALJ’s Duty to Evaluate Plaintiff’s Subjective Allegations

Social Security Ruling 16-3p provides a two-step framework for the ALJ to

evaluate a claimant’s subjective allegations. SSR 16-3p, 2016 WL 1119029, at *2 (Mar.

16, 2016). First, the ALJ must make a threshold determination regarding “whether there

is an underlying medically determinable physical or mental impairment(s) that could

reasonably be expected to produce an individual’s symptoms, such as pain.” , at *2.

Second, the ALJ will evaluate the intensity and persistence of the claimant’s symptoms

to determine the extent to which they limit an individual’s ability to perform work-

related activities. At this second step, the ALJ will examine the objective medical

evidence, the claimant’s statements regarding his symptoms, information from medical

sources, and “any other relevant evidence” in the record. , at *4. In evaluating a

claimant’s subjective statements, the ALJ must “provide specific reasons for the weight

given to the [claimant’s] symptoms, [which are] consistent with and supported by the

evidence, and [ ] clearly articulated” for purposes of any subsequent review. , at *9.

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B. No Error in the ALJ’s Evaluation of Plaintiff’s Subjective

Allegations

This Court’s review of the ALJ’s consideration of Plaintiff’s subjective reports is

guided by two principles. First, such “determinations are peculiarly the province of the

finder of fact, and [the court] will not upset such determinations when supported by

substantial evidence.” , 68 F.3d 387, 391 (10th Cir. 1995). Second,

“findings as to [subjective reports] should be closely and affirmatively linked to

substantial evidence and not just a conclusion in the guise of findings.” (additional

alteration omitted).

Plaintiff begins her challenge to the ALJ’s evaluation of her subjective allegations

by setting forth the ALJ’s summary of statements which had been made by Plaintiff in a

function report and at the administrative hearing. (ECF No. 18:12). Plaintiff then

acknowledges that the ALJ had deemed these statements “not entirely consistent with

medical evidence and other evidence in the record.” (TR. 448). According to Ms.

Hendricks, the ALJ’s finding “cannot stand” because “it is largely based on a faulty

understanding of coarctation of the aorta.” (ECF No. 18:12). Plaintiff then criticizes the

ALJ’s findings on Plaintiff’s coarctation and points to evidence in the record which she

believes ought have resulted in a different finding by the ALJ. (ECF No. 18:12-14). Once

again, the Court reads Plaintiff’s argument as nothing more than an attempt to re-weigh

the evidence, which is improper. . The ALJ fully considered the coarctation,

including medical evidence relating to this condition prior to finding that Plaintiff’s

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subjective allegations were not entirely consistent with the medical and other evidence

of record. (TR. 448). In doing so, the ALJ stated:

Indeed, the claimant has a history of coarctation of the aorta, status post

end-to-end anastomosis repair. On August 12, 2014, the claimant

underwent cardiac catheterization with balloon dilatation and the area was

recoarctated four times to a pressure of 6 atmosphere. Dr. Kimberling

stated that the claimant would likely need balloon and stent placement in

the future. On September 19, 2014, the claimant was seen for follow up

wherein he was generally recommended to continue with regular follow

ups. In addition, an echocardiogram on December 31, 2014, showed

moderate to severe recurrent coarctation of the aorta without significant

runoff. However, an echocardiogram on March 31, 2015, showed only

mild recurrent coarctation of the aorta. Further, on October 2, 2015, it

was noted that the claimant’s coarctation was stable. Treatment records

generally reflect the claimant was seen annually for routine monitoring.

(TR. 448). Plaintiff contends that “[a]n ALJ must articulate specific reasons for

questioning a claimant’s credibility.” (ECF No. 18:12). The ALJ’s reasoning demonstrates

that she has fulfilled this duty. As a result, the Court rejects Plaintiff’s challenge to the

ALJ’s evaluation of subjective allegations.

X. MISCELLANEOUS

In a final allegation of error, Plaintiff states: “The ALJ erred at Step Three and

failed to consider the combined effect of all Claimant’s medical determinable

impairments.” (ECF No. 18:15). The Court disagrees. TR. 443 (“In making this

determination, the combined effect of all medically determinable impairments, even

those that are not severe was considered.”). In this section, Plaintiff also states: “the

ALJ simply failed to analyze Claimant’s ADHD as a Listing.” (ECF No. 18:15). Ms.

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Hendricks fails to explain how or why D.C.H.’s ADHD should have been considered as a

Listing and the Court will not entertain this perfunctory argument.

ORDER

The Court has reviewed the medical evidence of record, the transcript of the

administrative hearing, the decision of the ALJ, and the pleadings and briefs of the

parties. Based on the forgoing analysis, the Court AFFIRMS the Commissioner’s

decision.

ENTERED on September 29, 2023.

SHON T. ERWIN

UNITED STATES MAGISTRATE JUDGE

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